Citation NR: 9618844
Decision Date: 07/05/96 Archive Date: 07/17/96
DOCKET NO. 93-26 475 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Whether new and material evidence has been submitted to
reopen the veteran’s claim for service connection for hearing
loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
R. M. Yonemoto, Counsel
INTRODUCTION
The veteran had active duty from September 1967 to March
1970.
In a Remand Order of November 1995, the Board of Veterans'
Appeals (Board) considered the issue of entitlement to an
increased rating for post-traumatic stress disorder. In
March 1996, the Regional Office (RO) increased the evaluation
assigned for post-traumatic stress disorder from 30 percent
to a schedular 100 percent. Since the maximum schedular
evaluation for that disorder has been assigned, that issue is
no longer an appellate issue.
REMAND
Service connection for bilateral hearing loss was denied by
the RO in a January 1972 rating decision and the veteran did
not appeal that decision. The sole issue which has been
considered in connection with the veteran’s current claim,
and the only issue developed for appellate review, is the
issue of whether there is new and material evidence to reopen
the previously denied claim of service connection for
bilateral hearing loss.
The Board notes that it has essentially been argued by and on
behalf of the veteran that there was medical evidence of
record in January 1972 which established bilateral
sensorineural hearing loss within the one year period
following the veteran’s discharge from service, and that
provisions of law pertaining to presumptive service
connection were not applied. The Board notes that private
medical evidence was of record at the time of the January
1972 rating decision which revealed that the veteran was seen
in February 1971, less than one year after service discharge,
and that bilateral high tone hearing loss was demonstrated.
The medical evidence also attributed the hearing loss to the
veteran’s exposure to artillery fire during service.
The Board finds that the veteran’s claim raises the question
of whether there was clear and unmistakable error in the
January 1972 rating decision denying service connection for
bilateral hearing loss. This issue is clearly inextricably
intertwined with the issue developed for appellate review and
logically must be resolved prior to any further consideration
of the matter on appeal.
Accordingly, the case is REMANDED to the RO for the following
development:
The RO should review the evidence of
record at the time of the January 1972
rating decision and determine whether
there was clear and unmistakable error in
that decision to deny service connection
for bilateral hearing loss. All
applicable provisions of law should be
considered, including consideration of
the argument that presumptive provisions
of law were not applied and would have
provided a basis for the grant of service
connection. If the determination
regarding this issue is adverse to the
veteran, he and his representative should
be furnished a supplemental statement of
the case which addresses the issue and
they should be given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
D. C. SPICKLER
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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